(Circulated by authority of the Minister for Broadband,
Communications

and the Digital Economy, Senator the Honourable Stephen
Conroy)

TELECOMMUNICATIONS UNIVERSAL SERVICE MANAGEMENT
AGENCY BILL 2011

OUTLINE

The Telecommunications
Universal Service Management Agency Bill 2011 (the Bill) forms part
of a package of legislation to achieve continuity of key
telecommunications safeguards in the transition to the
National Broadband Network (NBN).

The Bill provides for the establishment of the
Telecommunications Universal Service Management Agency (TUSMA) as
the statutory agency that will have the responsibility for the
effective implementation and administration of service agreements
that deliver universal service and other public policy
telecommunications outcomes.

The proposed amendments fall into
three groups. First, the amendments provide for disclosure and
consent powers relating to the achievement of the ‘voice
customer migration policy objective’, which is a key
component of the broader policy objective described in
paragraph 11(e) of the Bill. Second, the amendments enable
TUSMA to provide information to the Telecommunications Industry
Ombudsman (TIO), the Regional Telecommunications Independent Review
Committee (RTIRC) and the ‘Secretary of the Department’
(currently the Secretary of the Department of Broadband,
Communications and the Digital Economy). Third, the Bill replaces
‘economics’ with ‘consumer affairs’ as one
of the alternative five fields a person is required to have
experience or knowledge in, as well as significant standing, in
order for that person to be eligible for appointment as a TUSMA
member.

Voice Customer Migration Policy
Objective amendments

Under the Bill, TUSMA may enter
into contracts or make grants of financial assistance under
clause 13 of that Bill for a purpose relating to the
achievement of any or all of the policy objectives, including the
objective that there are such customer information programs and
customer cabling installation programs as are necessary to support
the continuity of supply of carriage services during the transition
to the NBN.

These proposed legislative powers would enable
TUSMA to carry out functions relating to the migration of
voice-only customers that are currently set out in an agreement
between the Commonwealth and Telstra Corporation Limited (Telstra),
which, following the commencement of the TUSMA Bill, will be taken
to have been entered into by TUSMA. These arrangements include the
provision of information to voice-only customers prior to copper
services being decommissioned and, if necessary, limited internal
rewiring that is reasonably required so that voice-only customers
can continue to receive voice-only services over the NBN fibre
network. Similar arrangements may be entered into between TUSMA and
other service providers with voice-only customers.

The proposed amendments enable
TUSMA to require, by written notice, that a carriage service
provider:

provide to TUSMA information or
documents in the provider’s possession, if TUSMA believes
on reasonable grounds that
the provider has information or documents relevant to the
achievement of the voice customer migration policy objective;
or

consent to a third person contacting that
provider’s customers where such consent would be likely to
facilitate the achievement of the voice customer migration policy
objective.

The purpose of the amendments is to ensure that
existing voice-only customers (including voice-only customers
requiring Priority Assistance services due to a life threatening
medical condition) can be reliably identified, and notified of
their options of maintaining continuity of service as the existing
copper network is progressively decommissioned during the NBN
rollout and replaced with the NBN fibre network. The amendments to
the Bill will assist TUSMA in meeting its voice customer migration
policy objective in two broad ways.

First, the
power to obtain information or documents held by carriage service
providers would assist TUSMA in supporting the migration of
public interest services to the NBN by overcoming potential restrictions on the
disclosure of voice-only customer-related information held by
carriage service providers. Access to customer information will be
required to enable TUSMA and relevant carriage service providers to
accurately identify voice-only customers so that they can be
notified about their service options and the processes involved if
they wish to maintain a fixed-line voice service by migrating to
the NBN. While it is expected that TUSMA would seek contractual
measures to support disclosure of the required information, there
may nevertheless be existing restrictions on this information being
disclosed by Telstra or other parties. In these circumstances,
TUSMA would be able, by written notice, to require the disclosure
of such details by carriage service providers. Because multiple
providers may offer services to individual customers, it may be
necessary to obtain information from more than one provider in
order to verify whether a customer is obtaining a voice-only
service or not.

Second, the amendments will enable Telstra and
other carriage service providers to contact the customers of other
carriage service providers that have not entered into a contract or
grant agreement with TUSMA for the achievement of the voice
customer migration policy objective for the purpose of, among other
things, identifying those customers that may require assistance
with the migration of their voice-only services. The amendments
will therefore help TUSMA to provide a comprehensive safety net so
that voice-only customers are appropriately informed of their
options and are provided with the best possible opportunity to
maintain continuity of a fixed-line voice service via the NBN
following disconnection from the existing copper
network.

In its use and disclosure of any information or
documents obtained through these powers, TUSMA would, as a
statutory agency, be subject to the requirements of the Privacy
Act 1998 , including the Information Privacy Principles
(IPPs) under that Act. The IPPs set out the base line privacy
standards for the collection, use and
disclosure, and secure management of personal information by
Commonwealth agencies.

These proposed amendments are not intended to be
open-ended in their effect, as the use of these powers by TUSMA
would be limited to the scope of the voice-only customer
information programs and the customer cabling installation programs
covered by the voice customer migration policy objective. Once the
NBN rollout is complete and arrangements for these voice customer
migration programs have been finalised, the proposed powers set out
in these amendments will no longer apply.

Other amendments

The other amendments are in response to
recommendations 1 and 2 of the report of the Senate Environment and
Communications Committee on the Bill.

First, the amendments will enable TUSMA to
disclose information to the TIO, the RTIRC and the Secretary to the
Department where TUSMA is satisfied that such provision of
information will enable those bodies or persons to perform or
exercise any of their functions or powers.

Second, the amendments change the fields in
which TUSMA’s members must have substantial experience or
knowledge, and significant standing, by including consumer affairs
and removing the field of economics. This amendment will better
enable TUSMA to consider the needs of consumers in relation to the
provision of USO and other public interest telecommunications
services.

FINANCIAL
IMPACT STATEMENT

The
amendments are not expected to have any material financial impact
for the Commonwealth.

ABBREVIATIONS

The following abbreviations are used in this
supplementary explanatory memorandum:

This
amendment inserts a new definition of Telecommunications
Industry Ombudsman into clause 4 of the Bill. The
definition provides that this term has the same meaning as in the
Consumer Protection Act.

This
is a consequential amendment required because of proposed amendment
(8).

AMENDMENT
(2)

This
amendment clarifies that the defined term voice customer
migration policy objective means the policy objective set out
in proposed paragraph 11(e) of the Bill, but only so far as
that policy objective relates to customer information programs
and/or customer cabling installation programs.

This
amendment limits the scope of the powers proposed to be inserted in
the Bill under amendment (2), and makes clear that those powers are
intended to enable TUSMA to provide assistance related to the
migration of public interest services currently reliant on the
existing copper-based network to the NBN, thereby providing a
safety net for the continued operation of these services. Such
support could include arrangements to meet cabling installation
costs, or the provision of information to voice-only customers
regarding their service options and the processes involved in
migrating to the NBN.

AMENDMENT
(3)

This
amendment inserts a new proposed Division 4A into the Bill for
the purpose of facilitating the achievement of the voice customer
migration policy objective.

Subdivision A—Access to information or documents held by a
carriage service provider

Subdivision A of Division 4A of the Bill enables TUSMA to
require a carriage service provider to give to, or produce to TUSMA
certain information and documents. These provisions are similar to
the requirements set out in proposed clauses 78 to 82 of the
Bill, which provide the Minister with the power to require
information or documents from NBN Co where the Minister
believes that the information or documents would be relevant to
TUSMA’s functions or powers. Unlike clause 78, though,
the requirements provided for in this subdivision must specifically
relate to the achievement of the voice customer migration policy
objective.

Clause 29A - Access to information or documents held
by a carriage service provider

Clause 29A applies where TUSMA believes on reasonable grounds that
a carriage service provider has information or documents relevant
to the achievement of the voice customer migration policy
objective.

Subclause 29A(2) enables TUSMA to give written notice to a
carriage service provider requiring it to give TUSMA any such
information or documents (including copies of documents) within the
period and in the manner and form specified in that notice.
Subclause 29A(3) provides that for the purposes of this
clause, the period specified in the notice must not be less than 14
days after the notice is given.

A
carriage service provider must comply with a requirement to provide
information or documents to the extent that it is capable of doing
so (subclause 29A(4)). A carriage service provide will commit
an offence if it receives a notice under subclause 29A(2) and
subsequently engages in conduct which contravenes a requirement of
that notice. The penalty for a contravention of this clause is 50
penalty units.

Clause 29B - Copying
documents—compensation

This
clause provides for a carriage service provider to be paid
reasonable compensation by TUSMA for complying with a requirement
covered by paragraph 29A(2)(c) to make copies of documents and
produce them to TUSMA.

Clause 29C - Copies of documents

Clause 29C enables TUSMA to inspect a document (or copy of a
document) provided under subclause 29A(2), to make copies or
extracts from those documents, and to retain possession of copies
of such documents.

Clause 29D - TUSMA may retain documents

This
clause allows TUSMA to take and retain possession of a document
provided under subclause 29A(2) for as long as is necessary.
However, subclause 29D(2) provides that the carriage service
provider entitled to possession of the document is also entitled to
be supplied a certified true copy of the document by TUSMA as soon
as is practicable. Subclause 29D(3) provides that the certified
copy must be received in all courts and tribunals as evidence as if
it were the original.

Subclause 29D(4) provides for TUSMA, where it thinks
appropriate, to permit the carriage service provider otherwise
entitled to possession of the document (or a person authorised by
that provider) to inspect, make copies, or take extracts from, the
document until a certified copy is supplied to the relevant
provider.

Clause 29E - Law relating to legal professional
privilege not affected

This
clause makes clear that none of the provisions in
Subdivision A of Division 4A of the Bill will affect the
law relating to legal professional privilege.

Subdivision
B—Disclosure of information

Clause 29F - Disclosure of information

This
clause allows TUSMA to disclose to a carriage service provider
information obtained under clause 29A, or contained in a document
produced to TUSMA under that clause. Subclause 29F (2) makes clear
that the disclosure must be for a purpose relating to the
achievement of the voice customer migration policy objective.

This
provision would enable TUSMA to provide information to carriage
service providers for the purpose of allowing the provider to
contact and assist customers in the migration of their voice-only
services from the existing copper-based network to the NBN. Such
information might include, for example, details on which customers
of the provider will require information as to their voice service
options prior to any potential disconnection from the existing
copper network.

Subdivision C—Consent to customer contact

Clause 29G - Consent to customer contact

This
clause applies to a carriage service provider if TUSMA believes on
reasonable grounds that should the provider consent to another
person (the third person) contacting the provider’s customers
(or a class of customers) for a purpose relating to the achievement
of the voice customer migration policy objective, that consent
would facilitate the achievement of that policy objective. This
provision only applies to a carriage service provider if the
provider is not a contactor or grant recipient of TUSMA in relation
to a clause 13 contract or grant entered into for a purpose
relating to the achievement of the voice customer migration policy
objective. If the provider has entered into such a contract or
grant with TUMSA, then the matter of the need for consent would be
addressed contractually.

Subclause 29G(2) provides that in these circumstances TUSMA may, by
written notice, require the carriage service provider to consent,
within a specified period, to the third person contacting the
provider’s customers or class of customers for the purposes
of the voice customer migration policy objective. Under
subclause 29G (3), the specified period in the notice must not
be at least 14 days after the notice is given to the provider.

Subclause 29G(4) provides that a carriage service provider
must comply with a requirement to consent to customer contact. The
provider will commit an offence if, after required to provider by
written notice, it engages in conduct contravening that notice. The
penalty for a contravention of this clause is 50 penalty units.

By
authorising contact with carriage service provider customers for
the purposes of the voice customer migration policy objective,
clause 29G allows for those customers to receive advice and
assistance relating to the future migration of their voice-only
services to the NBN. If such customers were unable to receive such
advice or assistance due to carriage service provider restrictions
on contact with other providers, they could potentially lose access
to their voice-only services following the disconnection of their
premises from the existing copper network.

Where the carriage service
provider’s consent has been required under this clause, any
use or disclosure of personal information relating to the
provider’s customers will continue to be subject to the
requirements of the Privacy Act 1998 , including the National
Privacy Principles (NPPs) in that Act. The NPPs set out the base
line privacy standards for the collection, use and disclosure, and secure management
of personal information by private sector organisations.

AMENDMENT
(4)

This item amends
subclause 38(2) of the Bill by omitting paragraph (d)
(‘economics’) and substituting with a new paragraph (d)
specifying ‘consumer affairs’ as one of the five fields
the Minister must be satisfied that a person has experience or
knowledge in, and significant standing, in order for that person to
be eligible for appointment by the Minister as a TUSMA member. A
person is only required to satisfy one of those fields.

This amendment is in response to
recommendation 2 of the report of the Senate Environment and
Communications Committee and to the submission made to the
Committee by the Australian Communications Consumer Action Network.
The inclusion of the field of ‘consumer affairs’ in
clause 38 recognises that the contracts and grants managed by
TUSMA are intended to service the needs of consumers. The TUSMA
members will focus on efficient and
effective service
delivery through the management of contracts and grants entered
into in accordance with the policy objectives in clause 11. Having
a member with an understanding of consumer affairs will provide a
valuable perspective to decisions made by TUSMA.

AMENDMENT
(5)

This
amendment omits the reference in clause 122 to ‘the ACMA and
the ACCC’, and substitutes them with references
‘certain bodies or persons’. This broad reference is
required because amendment (8) will allow for TUSMA to disclose
information to the RTIRC, the TIO and the Secretary of the
Department in addition to the ACMA and the ACCC.

AMENDMENT
(6)

AMENDMENT
(7)

These
amendments remove references in clause 122 to
‘authorities’ (authority), and substitutes with a
reference to ‘bodies or persons’ (body or person).
These are technical amendments required because of amendment
(8).

AMENDMENT
(8)

This amendment includes the
TIO, the RTIRC and the Secretary of the Department (currently the
Department of Broadband, Communications and the Digital Economy) as
bodies or persons to whom TUSMA may disclose information under
clause 122 of the Bill, in addition to the ACMA and the ACCC.
TUSMA will only be able to disclose information to these bodies or
persons if TUSMA is satisfied that the information will assist the
relevant body or person to perform or exercise any of their
functions or powers.

This
amendment responds to recommendation 1 of the report of the Senate
Environment and Communications Committee, and to the submission
made to the Committee by the TIO. The Committee recommended, in
part, that clause 122 of the Bill be amended to enable TUSMA to
disclose information to the TIO. In addition to the ACMA and ACCC, TUSMA and the TIO have
significant roles in the delivery and oversight of
telecommunications consumer protections. The ability of TUSMA to
provide particular information may assist the TIO in the resolution
of disputes between consumers and their service
providers.

In the case of RTIRC, this
amendment allows for the provision of useful information to improve
telecommunication services for Australians in non-metropolitan
areas. In the case of the Department, the provision of information
will assist with reporting and policy development undertaken by the
Department.